Attorney-General Chris Finlayson has told Parliament that disenfranchising all prisoners cannot be justified in a free and democratic society. So why does it look like he's going to vote for this to become our law?

Looks like some oik at Crown Law has been at it again. The Attorney General Chris Finlayson apparently has been bamboozled into attaching a section 7 notice under the New Zealand Bill of Rights Act 1990 to Paul Quinn's members bill designed to take away the vote from all convicted persons while they are detained in prison. A section 7 notice alerts Parliament to the Attorney-General's opinion that a legislative proposal would strip individuals of a fundamental right in a way that cannot be demonstrably justified in a free and democratic society.

Chris Finlayson's reasons for this conclusion largely mirror arguments I made a month ago in another Pundit post. (In that post I also stated: "it's a virtual certainty that the Attorney-General will attach a notice to Paul Quinn's bill to the effect that it is inconsistent with our New Zealand Bill of Rights Act." How I now bitterly regret including that weasely "virtual" in that sentence.)

The Bill's objectives are not "rationally linked" to its means, says Chris Finlayson. Because the primary determinant of whether a person loses their right to vote is when they are sentenced, not what they are sentenced for or how long they are sentenced, it would have arbitrary outcomes. You could, for example, see a person jailed for a month for not paying fines being unable to vote, whilst a recidivist burglar just released from 2 1/2 years in jail still casts a ballot. Removing the indvidual right to participate in the most fundamental t ask of selecting who will make laws for our society in such a capricious and unprincipled manner simply is not acceptable in a country that calls itself a democracy.

So there is no surprise that the Attorney-General acted as he did. It was not even a close call. Indeed, had he not attached a section 7 notice to this Bill, the entire system of "rights vetting" of proposed legislation would have failed catastrophically.

But here's the kicker. Having given his opinion that this proposed law limits a fundamental right in an unjustifiable fashion, it looks like Chris Finlayson will join his National Party colleagues in voting in favour of it at its First Reading.

I don't mean to have a pop at him personally for this - other Attorney-Generals have done the exact same thing. They are, after all, also MPs who are bound by caucus loyalty. And Paul Quinn is a National MP, so it would be a slap in his face if National did not agree to support his proposal at least as far as select committee. For that is all the First Reading vote does; no doubt this Bill will quietly die there once its full flaws and inconsistencies are revealed.

Nevertheless, there still is something a bit off about the Attorney-General one day giving his best considered advice that a proposed law is so inimical to individual rights that it ought not to find a home in the statute books of a free and democratic society, and on the next going into Parliament and voting to allow it to proceed towards enactment into law.

Other MPs don't face the same problem. A section 7 notice is just the Attorney-General's view of the matter. Other MPs are fully free to accept or disagree with it (although we should expect them, as a matter of legislative best practice, to at least consider the Attorney-General's view and come up with reasons why they think it is wrong).

So if MPs choose to vote for a Bill that the Attorney-General believes unjustifiably limits rights, that only means that they think the rights limits is justifiable. I have no problem with that happening. And it happens quite often: in the 20 years the Bill of Rights Act has been in place, fully half the Bills attracting a section 7 notice have passed in an unchanged form; with respect to Government Bills the passage rate is 90 percent.

But the Attorney-General is in a rather different position. As a law officer, his job under the Bill of Rights Act is to warn Parliament about proposed legislative measures that he believes unjustifiably trench on fundamental individual rights. For him to then, as a parliamentarian, vote in favour of those measures becoming law completely undercuts the message his warning is meant to send. Why take the Attorney-General's opinion seriously when he himself doesn't think it important enough to follow? After all, he can hardly say; "as Attorney-General I believe this is an unjustified limit on rights, but as an MP I believe it is fine."

So here's my proposed solution. We need to develop a constitutional convention in New Zealand that the Attorney-General will vote against, or at least abstain on, the First Reading of any Bill in respect of which he has issued a section 7 notice. A vote against would be preferable, but I retain the abstention option in recognition of the political reality that the Attorney-General cannot oppose measures brought before the House by his cabinet (or caucus) colleagues.

It may be that such a convention would not appreciably alter the fate of any future legislation. But it would put an end to what otherwise is a practice that just cannot be justified on any principled grounds.

 

Comments (14)

by Dean Knight on March 17, 2010
Dean Knight

Good idea.  And interesting idea to "invent" a convention - not exactly sure how we do that... 

But if it helps to have other members of the academy line up behind you and encourage the AG to adopt the practice, count me in.  

by Graeme Edgeler on March 18, 2010
Graeme Edgeler

I don't mean to have a pop at him personally for this - other Attorney-Generals have done the exact same thing.

Not just other Attorneys-General. This one is making a habit of it too. This will be his fifth vote* against his own advice (and you can probably add a sixth being a vote he took while Attorney-General in light of a previous Attorney-General's report).

*excluding double-ups.

by stuart munro on March 18, 2010
stuart munro

Political reality can change if the rules do: if his professional opinion obliges him to oppose a bill, his professional responsibility to his constituents obliges him not to support it.

He could of course resign as AG and support the bill. But being a gnat one imagines a principled stand is beyond him.

by Andrew Geddis on March 18, 2010
Andrew Geddis

Dean,

I guess all conventions start somewhere - perhaps with a joint party statement of intent, supported (as you say) by the academic and wider legal community? Of course, it wouldn't be a convention unless and until successive Attorney-Generals follow it.

Perhaps we could spraypaint this suggestion on Parliament's forecourt, then argue a "claim of right" in our defence. Graeme - would we walk?

by Dean Knight on March 18, 2010
Dean Knight

Andrew

Quite.  My rhetoric query was perhaps inspired by the fact I'm teaching const'nal conventions in class today. Maybe I can get 300 students to also support the crusade...

I've tried to "invent" a constitutional convention before - but at local govt level.  Needless to say, I failed.

by Graeme Edgeler on March 18, 2010
Graeme Edgeler

Of course, it wouldn't be a convention unless and until successive Attorney-Generals follow it.

And believe that they are obliged to follow it (or am I confusing myself with customary international law?).

At the beginning of this Parliament there was expressed slight disappointment from members of the Labour Party that, in moving the appointment of Lindsay Tisch as Deputy Speaker, it was unfortunate that the government was not following the emerging convention of appointing the Deputy Speaker from the opposition (as had happened in the previous term). If a one-time appointment, once, following a very close election, can create a precedent, I don't see why this wouldn't. It will happen often enough, and questions will be asked of the next person to hold the office about whether they'd follow it, which they may well, unless their vote were absolutely necessary.

Graeme - would we walk?

I certainly wouldn't. And do you really believe that the Attorney-General's actions in voting for the first reading of Paul Quinn's amendment bill give you a right to spraypaint the parliamentary forecourt? And would a jury believe you if you said you did?

by Andrew Geddis on March 18, 2010
Andrew Geddis

Graeme,

It's catch-22, of course. It wouldn't be a constitutional convention unless successive Attorney-Generals evidenced that they are bound by it. But it can't become a constitutional convention until an Attorney-General begins to follow it. Such are the wonders of our customary, unwritten constitution. Dean Knight probably can explain all this far better than I, of course. But be warned - he'll make you answer questions in class.

On the other topic, would it improve my chances of walking if I were to grow an unkempt beard and live on the land with several children? I also can be a very convincing actor ...

by Kurt Sharpe on March 18, 2010
Kurt Sharpe

It certainly takes away the impact of the issuing of a section 7 notice if the Attorney-General, despite saying that a law in not justifiable in a free and democratic society, proceeds to vote for it. Perhaps this convention would make other MPs stop and think too- never a bad thing.

The percentages you have stated around the amount of Bills passing despite the section 7 notice are ridiculously high. I am definitely on board for this 'convention creating crusade'.

by Paul Falloon on March 20, 2010
Paul Falloon

While I agree that the AG should reserve the right to not have their vote whipped in favour of a bill they consider worthy of a section 7 notice (and establishing a convention for abstaining seems best to protect them from being persecuted by their caucus for it). I wonder if Mr Finlayson is supporting the bill on the same grounds National supported the 3-strikes bill - use the committee to see if it can be improved. Maybe his intention is to try remove the conflict between the bill and the Bill of Rights Act at the select committee?

by Paul Falloon on March 20, 2010
Paul Falloon

Or am I giving him too much credit?

by Andrew Geddis on March 21, 2010
Andrew Geddis

Paul,

If that was the reason that National supported the 3 Strike Bill
at first reading, it failed spectacularly to improve its more problematic features - see Graeme Edgler's explanation here. As for the prisoner voting bill, I don't see how it can be improved - it is the very idea that is problematic!

by Graeme Edgeler on March 22, 2010
Graeme Edgeler

As for the prisoner voting bill, I don't see how it can be improved - it is the very idea that is problematic!

It could become the Electoral (enfranchisement of convicted prisoners) Bill and give the vote to murderers and others sentenced to terms of imprisonment exceeding three years (I'm not sure this is true, standing orders may prevent such a change as being against the purpose of the bill).

It could amend the Sentencing Act (or somehow pretend to amend the Sentencing Act, because I suspect Standing Orders mean it is too late now for it to become a law reform bill) to create disqualification as a sentence that can be imposed, if such an imposition would be proportionate in the particular circumstances, and would assist in meeting the aims of sentencing.

by Paul Falloon on March 22, 2010
Paul Falloon

Oh I agree the final 3 strikes bill is still stupid, but from Nat's perspective they were strongly against ACT's initial draft but supported it to committee to put their spin on it so they can sleep easier at night. I just wonder if they (in particular Finlayson) are going to do the same thing with Quinn's bill. Probably with the same pathetic result, as you say, it's too fundamentally flawed.

by Andrew Geddis on March 23, 2010
Andrew Geddis

Paul,

But the problem is that the Attorney-General's only justification for voting to send a non-BORA compliant measure (like the 3 strikes legislation or prisoner disenfranchisement) to select committee is that those problems will "get fixed" there. (He can't say "I don't think there is a BORA compliance issue", which other MPs may argue.)

Then when you see the select committee returning a Bill with the original BORA problems made even worse - a la the 3 strikes legislation - that justification looks pretty threadbare. Not sure how that helps the Attorney-General "sleep easier at night".

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